[CCWG-ACCT] Does the proposed change to the GAC Bylaw create a new "mandatory voting requirement" for the ICANN Board?

Wed Dec 16 17:27:47 UTC 2015

One other thing -- there's no need to call me "his Excellency." I'll follow
U.S. protocol (to the extent I know it) and accept "Mr. President."  For
some reason, IPC has always had a "President" while all other ICANN groups
have "Chairs." The reasons for this may be lost in the mists of time,
though I think it's because the initial governing documents of the IPC were
based on non-profit corporation bylaws.

When I am not carrying out my official duties (e.g., when we're drinking a
beer and you can see my tattoos, to paraphrase Justin Trudeau), you can
call me "Greg" (or even "Grec," if you prefer).

Greg

On Wed, Dec 16, 2015 at 12:21 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Thank you for your email, Kavouss.  I initially thought it was a
> non-answer, but then I realized that it was a diplomatic answer.  I don't
> spend much time in diplomatic circles, so I initially didn't get it.
>
> I believe that what I am reading (and translating from diplomatic terms to
> New Yorkese (a more "in-your-face" dialect)) is this:  "We do not need to
> change that part of the proposed Bylaw because it does introduce a
> mandatory voting requirement where none existed before, and that is
> intentional (and not a drafting error)."
>
> I suppose any further discussion, or a frank statement of the intent and
> effect, would draw this issue out of the shadows, and thus jeopardize its
> inclusion in the final Proposal. Unfortunately, I think we need to draw
> this issue out of the shadows.
>
> Frankly, within my group, I had been arguing that this was a mere drafting
> error, that no new voting requirement was being introduced, and that all
> that was happening here was a change from majority to 2/3 but that the
> Board's process was otherwise unchanged.  I thought those reading more into
> were catastrophizing.  Now I am not so sure.
>
> The GNSO Council will be discussing this in 24 hours.  IPC is discussing
> it in less than 2 hours.  It's important to clarify what our proposal
> says.  I expect that IPC's reaction, for one, is going to be significantly
> more negative if this Proposal intends to change the Board's process and
> not just the decisional threshold (which is raising enough trouble on its
> own, thank you very much).
>
> Indeed, I think it undermines the credibility of the entire proposal if
> there are significant changes hidden in the language and not explained even
> in the most detailed explanation in the Annexes.  Bad drafting is something
> we can solve in implementation.  "Bad concepts" and "Trojan horses" are
> not.  We need to solve them now.
>
> I hope to have something to report to my constituency soon.  For better or
> worse.
>
> Greg Shatan
> [President, IPC, but writing in my personal capacity]
>
> On Wed, Dec 16, 2015 at 9:51 AM, Kavouss Arasteh <
> kavouss.arasteh at gmail.com> wrote:
>
>> Good Afternoon his Excellency
>> Tks for information.
>> I have replied to your conerns before" we do not need to change that part
>> . There are other major problems in ST18.
>> HOWEVER, THE LANGUAGE USED CURRENTLY  IS CONCEPTUAL AND NOT THE EXACT
>> bylaws legal text"
>> Regards
>> Kavouss
>>
>>
>>
>> 2015-12-16 15:31 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:
>>
>>> Kavouss,
>>>
>>> Your request came after I went to sleep. I responded as soon as I saw it
>>> after I woke up.
>>>
>>> I don't think I'm defending anybody's interests in regard to this
>>> particular question. I'm just trying to clarify what the Proposal is on a
>>> conceptual level.
>>>
>>> If the language does not clearly express the CCWG's intent, it needs to
>>> be changed. If it is the intent of the CCWG to institute a mandatory vote,
>>> that needs to be clarified as well.  This is not mentioned anywhere in the
>>> detailed explanation of the proposal, so if that is the intent it is not
>>> properly expressed.
>>>
>>> Either way, something needs to be changed.
>>>
>>> Do you have a response to the substance of my question? Is this a new
>>> mandatory vote or just bad drafting?
>>>
>>> Greg
>>>
>>> On Wednesday, December 16, 2015, Kavouss Arasteh <
>>> kavouss.arasteh at gmail.com> wrote:
>>>
>>>> Grec,
>>>> You did not reply to my question?
>>>> Whose interests you are defending?
>>>> I think ,we all should to the extent practiceable be neutral in reading
>>>> and or examining a given text from Professional view points.
>>>> Having said that , we do not need to change that part . There are other
>>>> major problems in ST18.
>>>> HOWEVER, THE LANGUAGE USED CURRENTLY  IS CONCEPTUAL AND NOT THE EXACT
>>>> bylaws legal text
>>>> Regards
>>>> Kavouss
>>>>
>>>>
>>>> 2015-12-16 9:48 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com>:
>>>>
>>>>> Interesting you say this now, even though it was raised sometime last
>>>>> month without attention:
>>>>>
>>>>>
>>>>> http://mm.icann.org/pipermail/accountability-cross-community/2015-November/008349.html
>>>>>
>>>>> Maybe now that you've written a full page about it, will warrant
>>>>> attention. Guess it's a saying of "the more you look at one thing, the less
>>>>> you see other stuff around". The ccwg focused on consensus and I hope they
>>>>> will get that for all I care. Good luck with trying to "eat the cake and
>>>>> have it" at the same time, even though there was IMO no significant reason
>>>>> to want to eat the cake in the first place (as it's half baked).
>>>>>
>>>>> Regards
>>>>> On Dec 16, 2015 9:10 AM, "Greg Shatan" <gregshatanipc at gmail.com>
>>>>> wrote:
>>>>>
>>>>>> All,
>>>>>>
>>>>>> In reviewing the Third Draft Proposal, concerns have been raised
>>>>>> within my constituency that the proposed Bylaw does more than replace an
>>>>>> existing "majority" threshold with a new "2/3" threshold.  The concern is
>>>>>> that the proposed Bylaw introduces a "mandatory vote" by the Board in order
>>>>>> to reject GAC Advice where the Bylaws do not currently require a Board
>>>>>> vote.  Further, there appears to be a concern that, if the Board does not
>>>>>> take a vote and affirmatively reject a piece of GAC advice, then that GAC
>>>>>> advice becomes binding on ICANN.
>>>>>>
>>>>>> These concerns stem from a reading of the draft Bylaw (new language
>>>>>> in red):
>>>>>>
>>>>>>
>>>>>> The advice of the Governmental Advisory Committee on public policy
>>>>>> matters shall be duly taken into account, both in the formulation and
>>>>>> adoption of policies. In the event that the ICANN Board determines to take
>>>>>> an action that is not consistent with the Governmental Advisory
>>>>>> Committee advice, it shall so inform the Committee and state the reasons
>>>>>> why it decided not to follow that advice. Any Governmental Advisory
>>>>>> Committee advice approved by a full Governmental Advisory Committee
>>>>>> consensus, understood to mean the practice of adopting decisions by general
>>>>>> agreement in the absence of any formal objection, may only be rejected by a
>>>>>> vote of two-thirds of the Board, and tThe Governmental Advisory
>>>>>> Committee and the ICANN Board will then try, in good faith and in a timely
>>>>>> and efficient manner, to find a mutually acceptable solution.
>>>>>>
>>>>>>
>>>>>> The current language of the Bylaw makes no reference to voting, only
>>>>>> to the far more ambiguous "determines to take an action."  As such, adding
>>>>>> a reference to a vote can be seen to add a new element (aside from the
>>>>>> introduction of a 2/3 threshold): the element of a bylaws-mandated vote.
>>>>>> Similarly, the statement that GAC Advice can only be rejected by a vote of
>>>>>> the Board can be read to state that if no such vote is taken (or if such
>>>>>> vote is taken and fails) that the GAC Advice is then something ICANN is
>>>>>> bound to follow.
>>>>>>
>>>>>> I don't think either of these things were intended by the CCWG.
>>>>>> Whether they are misreadings of our draft language or unintended
>>>>>> consequences of the drafting, this concern is troubling.  If it is the
>>>>>> intent of some of those drafting this language to force a vote where none
>>>>>> is currently required, then that is even more troubling.
>>>>>>
>>>>>> I would appreciate some clarification on these matters that I can
>>>>>> bring back to my group.
>>>>>>
>>>>>> I would also appreciate the CCWG considering a change in language to
>>>>>> remove this ambiguity which is currently causing great consternation in my
>>>>>> group.
>>>>>>
>>>>>> I suggest the language below.  This m
>>>>>> ore closely track
>>>>>> s
>>>>>> the language of the existing bylaw and avoid the use of the term
>>>>>> "vote," with its potential unintended consequences:
>>>>>>
>>>>>> The advice of the Governmental Advisory Committee on public policy
>>>>>> matters shall be duly taken into account, both in the formulation and
>>>>>> adoption of policies. In the event that the ICANN Board determines to take
>>>>>> an action that is not consistent with the Governmental Advisory
>>>>>> Committee advice, it shall so inform the Committee and state the reasons
>>>>>> why it decided not to follow that advice.
>>>>>> 
>>>>>> If the Board
>>>>>> 
>>>>>> determines to take an action that is not consistent with
>>>>>> Governmental Advisory Committee advice approved by a full
>>>>>> Governmental Advisory Committee consensus, understood to mean the practice
>>>>>> of adopting decisions by general agreement in the absence of any formal
>>>>>> objection,
>>>>>> 
>>>>>> such determination must be supported by
>>>>>> two-thirds of the Board, and the Governmental Advisory Committee and
>>>>>> the ICANN Board will then try, in good faith and in a timely and efficient
>>>>>> manner, to find a mutually acceptable solution.
>>>>>> 
>>>>>>
>>>>>>
>>>>>> I would appreciate your thoughts on this point and the revised
>>>>>> language.  Thank you.
>>>>>>
>>>>>> Greg
>>>>>>
>>>>>> _______________________________________________
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>>>>>> Accountability-Cross-Community at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>> _______________________________________________
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>>>>>
>>>>>
>>>>
>>
>
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